What our courts can and should do to address COVID-19 concerns | Kyla Lee
Friday, March 13, 2020 @ 11:08 AM | By Kyla Lee
This is a grave concern.
While most people who contract COVID-19 will experience only very mild symptoms and are at a low risk, our courts are typically filled with people who are a high risk for infection and at a high risk if infected. Think about the people in court who struggle with drug addiction and have contracted immune disorders like HIV/AIDS or hepatitis from drug addiction? What about people with chronic health issues as a result of years of living homeless?
Those people are often living in less-than-sanitary conditions, typically in close proximity with others facing similar issues.
And then there is our in custody population. Prisoners are transported in close quarters to court, held in close quarters in custody and then taken back to commonly overcrowded institutions where they share cells with others. Sheriffs and court staff often have close physical contact with in-custody individuals, frequently without gloves.
There is no need to explain the risks should a COVID-19 infection enter our prison populations.
So, since no one asked me, I decided to list my suggestions for what our criminal courts can be doing to address the need for adequate protections, social distancing and ensuring the most vulnerable people in our justice system are safe from infection.
First, reduce physical contact that accused persons have with others in our justice system. Many people who are on bail, probation and parole are subject to mandatory reporting conditions. Directives should be issued to allow all individuals to report by telephone, or using videoconferencing like Skype and Facetime.
Second, sanitation should be made a priority. High-level sanitation teams should be spraying all cells, prisoner docks, bathrooms, and courthouse hallways after court ends for the day. Counsel table, public galleries, the bench and witness boxes should be fully wiped down with cleaner at the end of each court day. Counsel should not be permitted to leave belongings in the courthouse overnight, temporarily.
To enhance social distancing, all non-violent matters currently set for trial should be adjourned, provided the accused is not on restrictive bail conditions. Counsel should be permitted to appear by telephone, videoconference, or through consent requisition and consent arraignment forms wherever possible. Crowns should not withhold consent to these measures unless the interests of justice require in-person attendance of defence counsel.
If simple plea matters can be adjourned, they should be adjourned. In that regard, if they must proceed, counsel should be permitted to appear as agent on any dispositions that are proceeding by joint submission. This can be facilitated by filing written instructions in advance with the court covering the plea inquiry factors. The court can by order dispense with the need to have a probation order read or signed. These measures should be used.
If Crown counsel are not required in court to speak to docket matters, pleas or trials, they should be permitted and indeed encouraged to work from home. Witness interviews can be conducted by telephone. Charge approval, file review and discussion with defence counsel do not require attendance in the office. Any Crown counsel, defence counsel, or court staff with immune disorders should be automatically excused from attending. This should not even be a question.
All traffic court matters for trial should be adjourned. There is no need to prioritize speeding tickets. Traffic court brings large crowds to courthouses and necessarily increases the risk of community spread. In the Fraser Valley of British Columbia there are currently several community spread cases. My experience in traffic courts in that jurisdiction is that the courtrooms are almost always full to capacity. This is not necessary.
A telephone line should be set up to allow disputants who wish to enter guilty pleas and dispute fine amounts, or seek time to pay to do so with a judicial justice of the peace by telephone. Officers can also call in by telephone for this purpose.
Sheriffs should be provided with adequate protective gear, including gloves and masks. In custody individuals in cells should also be given gloves and masks.
Video appearances should be used wherever possible for bail hearings, interim appearances pleas and sentencing for in-custody individuals. These methods are already used for interim appearances in many courthouses and their use should be expanded to include as many appearances as possible.
Finally, bail needs to be granted in all cases where it is even remotely possible. The Crown should be consenting to release of people in cells wherever possible, including as paper releases so that fewer people need to enter courtrooms and increase the type of contact necessary for those appearances.
None of these measures requires systemic reform. All of these measures use existing technologies and methods in court, in a more expansive manner consistent with the need for social distancing and to protect the most vulnerable people who are engaged with our justice system.
Kyla Lee is a criminal lawyer and partner at Acumen Law Corporation in Vancouver. Her practice focuses on impaired driving. She is the host of a podcast, Driving Law, and a weekly video series Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t! She is called to the bar in Yukon and British Columbia. Follow her at @IRPLawyer.
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